View source for Procedure in a LTO/DO Designation Hearing

{{HeaderLTODO}}

==General Principles==
A dangerous offender designation is available under s. 753 while a long term offender designation is available under s. 753.1.

The DO scheme has two steps. First, the court must determine if the offender must be a designated DO under s. 753(1). Second, the judge must determine what the appropriate sentence is under s. 753(4) and (4.1).<ref>
{{CanLIIRT|Runions|jv5c4|2023 ABCA 29 (CanLII)}}{{AtL|jv5c4|9}} ("The statutory scheme governing dangerous offender sentencing has two steps. First, the offender must be designated as a dangerous offender under s 753(1) of the Criminal Code. Second, the sentencing judge must determine the appropriate sentence under ss 753(4) and (4.1):")<br>
{{CanLIIRT|Zoe|j51fp|2020 NWTCA 1 (CanLII)}}{{TheCourtNWTCA}}{{AtL|j51fp|20}}
</ref>

; Jurisdiction
A judge of a provincial court or a superior court judge may issue a LTO or DO order.<ref>
See [{{CCCSec|752}} s. 752] defining "court" as a "court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction;"</ref>

{{reflist|2}}

==Hearing==


===Timing of DO Application===
{{quotation2|
753<br>
{{removed|(1) and (1.1)}}
; Time for making application
(2) An application under subsection (1) {{AnnSec7|753(1)}} must be made before sentence is imposed on the offender unless
:(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 {{AnnSec7|752.1}} and an application under subsection (1) {{AnnSec7|753(1)}} not later than six months after that imposition; and
:(b) at the time of the application under subsection (1) {{AnnSec7|753(1)}} that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.
{{removed|(3), (4), (4.1), (4.2), (5) and (6)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 753; 
{{LegHistory90s|1997, c. 17}}, s. 4; 
{{LegHistory00s|2008, c. 6}}, s. 42.
{{Annotation}}
|{{CCCSec2|753}}
|{{NoteUp|753|2}}
}}

===Application===
{{quotation2|
; Hearing of application
754 (1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless
:(a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;
:(b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and
:(c) a copy of the notice has been filed with the clerk of the court or the provincial court judge, as the case may be.

; By court alone
(2) An application under this Part {{AnnSec|Part XXIV}} shall be heard and determined by the court without a jury.
<br>
; When proof unnecessary
(3) For the purposes of an application under this Part {{AnnSec|Part XXIV}}, where an offender admits any allegations contained in the notice referred to in paragraph (1)(b) {{AnnSec7|754(1)(b)}}, no proof of those allegations is required.
<br>
; Proof of consent
(4) The production of a document purporting to contain any nomination or consent that may be made or given by the Attorney General under this Part {{AnnSec|Part XXIV}} and purporting to be signed by the Attorney General is, in the absence of any evidence to the contrary, proof of that nomination or consent without proof of the signature or the official character of the person appearing to have signed the document.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 754;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 203; 
{{LegHistory00s|2008, c. 6}}, s. 48.
{{Annotation}}
|{{CCCSec2|754}}
|{{NoteUp|754|1|2|3|4}}
}}

==Evidence in Hearing==

; Expert Evidence
Before any findings can be made under s. 753(1)(a)(i) or (ii), the Court must consider and weigh expert opinion evidence relating to risk of re-offence along with all other evidence adduced.<ref>
{{CanLIIRP|Montgrand|h4j1t|2017 SKCA 49 (CanLII)|352 CCC (3d) 485}}{{perSKCA|Caldwell JA}}{{atL|h4j1t|15}}
</ref>

; Victim Evidence
{{quotation2|
; Victim evidence
753.02 Any evidence given during the hearing of an application made under subsection 753(1) {{AnnSec7|753(1)}} by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) {{AnnSec7|753(5)(a)}} or subsection 753.01(5) {{AnnSec7|753.01(5)}} or (6) {{AnnSec7|753.01(6)}}.

{{LegHistory00s|2008, c. 6}}, s. 43.
{{Annotation}}
|{{CCCSec2|753.02}}
|{{NoteUp|753.02}}
}}

; Proof of Criminal Records
The crown may rely on court records to prove the circumstances surrounding the prior offences as long as they are from a "reliable and trustworthy" source.<ref>
{{CanLIIRP|Ziegler|fsfnb|2012 BCCA 353 (CanLII)|327 BCAC 53}}{{perBCCA|Neilson JA}} {{atL|fsfnb|73}}
</ref>

Use of evidence excluded at trial<br>
Evidence that was excluded under section 24(2)  of the charter due to a constitutional violation cannot then be used at a subsequent dangerous offender hearing.<ref>
{{CanLIIRx|Ricciardi|hqscl|2018 ONSC 445 (CanLII)}}{{perONSC|Di Luca J}}
</ref>

; Character Evidence
{{quotation2|
; Evidence of character
757 Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted
:(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and
:(b) in connection with a sentence to be imposed or an order to be made under this Part {{AnnSec|Part XXIV}}.

R.S., {{LegHistory80s|1985, c. C-46}}, s. 757; 
{{LegHistory90s|1997, c. 17}}, s. 5; 
{{LegHistory00s|2008, c. 6}}, s. 50.
{{Annotation}}
|{{CCCSec2|757}}
|{{NoteUp|757}}
}}

{{reflist|2}}

==Presence of the Accused at the Hearing==

{{quotation2|
; Presence of accused at hearing of application
758 (1) The offender shall be present at the hearing of the application under this Part {{AnnSec|Part XXIV}} and if at the time the application is to be heard
:(a) he is confined in a prison, the court may order, in writing, the person having the custody of the accused to bring him before the court; or
:(b) he is not confined in a prison, the court shall issue a summons or a warrant to compel the accused to attend before the court and the provisions of Part XVI {{AnnSec|Part XVI}} relating to summons and warrant are applicable with such modifications as the circumstances require.

; Exception
(2) Notwithstanding subsection (1) {{AnnSec7|758(1)}}, the court may
:(a) cause the offender to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible; or
:(b) permit the offender to be out of court during the whole or any part of the hearing on such conditions as the court considers proper.

R.S., c. C-34, s. 693; {{LegHistory70s|1976-77, c. 53}}, s. 14.
{{Annotation}}
|{{CCCSec2|758}}
|{{NoteUp|758|1|2}}
}}